The appellant was seriously injured in a motor vehicle accident on 26 May 2012, sustaining head, skeletal and other injuries. At the time of the accident, he was on a disability pension due to serious injuries suffered in an earlier accident.
On 8 August 2012, Dr Falcon, Clinical Neuropsychologist, assessed the appellant. Dr Falcon observed "mild reductions in verbal attention and working". He observed no difficulties in visual learning or retention of information and went on to conclude that:
"The current findings suggest a reasonable baseline post-significant head injury. It is likely that [the appellant] will continue to improve given the recency post-injury, and that any cognitive difficulties will continue to improve."
On 19 September 2013, the appellant underwent a medical assessment by the Motor Accidents Medical Assessment Service (MAS) pursuant to Pt 3.4 of the Act. The assessment was undertaken by Dr O'Neill, who assessed the appellant as having an 11 per cent permanent impairment in relation to his head injury. The assessment of 11 per cent permanent impairment was important as, in order to be entitled to damages for non-economic loss, a person has to have been assessed as having a permanent whole person impairment of greater than 10 per cent: see s 131 of the Act. The appellant had no claim for economic loss. The respondent did not provide any medical evidence for the purposes of the assessment, its position being at that time that liability was denied.
Davis v Kent [2017] NSWCA 122 | Case summary | Zoe
In his assessment report, Dr O'Neill commented on the "unusually poor documentation" provided for the purposes of the assessment, referring to the absence of an ambulance report, hospital notes and any delayed CT or MRI scan of the brain. It should be noted that Dr Falcon's report was also not in the material before Dr O'Neill.
Dr O'Neill noted that the appellant's previous accident was a complicating factor in the assessment of whole person impairment in circumstances where his existing disability pension was based in part upon "short-term memory loss and difficulty absorbing new information". Dr O'Neill added:
"There would certainly be a case for review of my Certificate after the provision of additional information including [the documentation to which he had referred]."
Read in context, this observation would indicate to any person with knowledge of the MAS process that the assessment might be less than 11 per cent should other information be provided.
The appellant commenced Common Law proceedings in the District Court on 15 May 2015. The respondent filed its defence on 26 November 2015 in which it admitted liability but did not admit the extent of loss or injury claimed. On 23 February 2016, the matter was set down for a four day hearing to commence on 10 October 2016.
In preparation for the hearing, the appellant and the respondent each obtained further medical evidence. The appellant obtained a medico-legal report from Dr Ellis, who examined him on 29 January 2016. In his report dated 3 February 2016, Dr Ellis assessed the appellant as having overall whole person impairment of 39 per cent. In making that assessment, Dr Ellis agreed with Dr O'Neill's "mental status impairment" assessment of 11 per cent.
The respondent obtained a medico-legal report from Dr Casikar, Consultant Neurosurgeon, who examined the appellant on 10 December 2015. In his report dated 15 December 2015, Dr Casikar's prognosis was that the appellant had recovered from the injuries sustained in the motor vehicle accident. The respondent also obtained a neuropsychological assessment from Dr Langeluddecke, Clinical Psychologist, who undertook the assessment on 15 June 2016. In her report dated 16 June 2016, Dr Langeluddecke stated that her findings indicated the appellant's "cognitive abilities to be generally well preserved at an Average level for age". She considered that these findings were in accord with those obtained by Dr Falcon shortly after the accident, although Dr Falcon's report was not available to her.
Dr Langeluddecke also referred to a medico-legal report prepared by Dr Oxenham, Neuropsychologist, who assessed the appellant in January 2016. According to Dr Langeluddecke, Dr Oxenham made reference to Dr Falcon's report and was of the opinion that the appellant presented with "significant psychological issues" as a result of his 2012 accident. Dr Langeluddecke also recorded that Dr Oxenham further described the appellant as having cognitive weaknesses, which he identified as attributable to a traumatic brain injury and was of the opinion that the appellant's most recent accident was likely to be "contributing" to these weaknesses. Dr Langeluddecke considered that her findings with respect to the appellant did not support "Dr Oxenham's more recent opinion of 'deficits, which range from mild to severe impairments'".
On 1 August 2016, the respondent's solicitors requested Dr Langeluddecke to provide an assessment of the appellant's whole person impairment arising from the 2012 accident. By letter dated 26 September 2016, she provided an assessment of whole person impairment of 0 per cent.
On Friday 7 October 2016, the respondent filed an amended defence in which an amended para (5) in the following terms was pleaded:
"The Defendant disputes the Plaintiff should be [a]warded compensation for … non-economic loss under the Motor Accidents Compensation Act 1999 and relies upon the provisions of s 62(1)(b) of that Act such that the Court should refer this claim for compensation for further medical assessment under Part 3.4 thereof"
At the commencement of the hearing on Monday 10 October 2016, the appellant objected to the amended defence, at least to the extent of the pleading in para (5). The appellant's counsel pointed out that, as she understood it, the intent of the pleaded amendment in para (5) was an application that the matter be referred to the Motor Accidents Authority for reassessment. The respondent accepted that was so, although he submitted that the para (5) pleading was a defence to the claim. The argument proceeded before the primary judge on the basis that it was an application for referral to the Motor Accidents Authority for reassessment, without any formal notice of motion and without the filing of any evidence in support.
Medical evidence had been obtained by the respondent for the purposes of the damages claim, including an assessment of whole person impairment of 0 per cent by Dr Langeluddecke, the psychologist who had carried out a neuropsychological assessment, and which was central to the respondent's application. Counsel for the respondent informed his Honour that the assessment had been obtained on 26 September 2016 and there had been insufficient time between then and the hearing that day to make a formal application to the Court for the referral of the matter for further medical assessment pursuant to s 62(1).
The respondent's counsel, in his submissions on the application, agreed with his Honour's summation of the essence of the application as follows:
"[The respondent] has very recently received a report which suggests [that the whole person impairment is] NIL and therefore, balancing everything up, the court should have a re-assessment of the percentage because it could be assessing the percentage on outdated material."
His Honour acceded to the application. In doing so, he carefully reviewed the submissions of both parties and identified the nature of the discretion to be exercised and the matters that could potentially justify the court exercising the discretion in favour of the referral. Those matters included where reliance on an existing assessment certificate would be unjust; or where other good reasons existed for the referral of a matter for further assessment: see primary judgment at 33 and (e).
In his Honour's opinion, at [37], the important matters that pointed to the exercise of discretion favourably to the respondent were:
1. that Dr O'Neill said he thought the provision of additional information would be relevant and would be a case for review of his certificate;
2. that that additional information was, in the main, now available;
3. that Dr O'Neill thought a neuropsychological assessment would be advantageous and that had now been obtained;
4. that the appellant's claim for non-economic loss was the most significant head of damage claimed;
5. that there was a wide range of views between the neuropsychologists in the material before him; and
6. that there would not be a substantial delay for the plaintiff if the medical assessment certificate was obtained.
In relation to the last of these considerations, his Honour had observed, at 35, that "it would take about three months to obtain a further MAS assessment certificate". His Honour, at [36], did not consider as decisive against granting the application the fact that the respondent had not obtained medical evidence until late 2015 and 2016 in circumstances where the proceedings had only been commenced in May 2015, just shortly before the expiry of the limitation period, the appellant having waited, as he was entitled to do, for his condition to stabilise before commencing proceedings.
His Honour added:
"[The respondent] then had to wait for service of the medical material relied upon by [the appellant] and to obtain his own medical reports on the issues in the case. There is no suggestion, in my view, that [the respondent was] particularly dilatory in relation to the obtaining of the medical reports ..."
His Honour did note, however, that there was some delay in obtaining the final report of Dr Langeluddecke and in making the application for reassessment and that was a factor to be taken into account in the exercise of the discretion.
[2]
Consideration
In circumstances where it is accepted that his Honour's discretion miscarried because he took into account a significantly wrong estimate of the delay which would be occasioned by the granting of the application, it was necessary for this Court to re-exercise the discretion. In doing so, we take into account the following matters.
First, the respondent, under s 63 of the Act, could have sought, but did not, a review of Dr O'Neill's threshold assessment of 11 per cent permanent impairment upon receipt of his certificate in September 2013.
Secondly, the respondent had admitted liability in November 2015, but did not then seek to challenge Dr O'Neill's assessment. This was relevant, because it was the respondent's non-admission of liability upon which it relied in declining to engage in the initial assessment process.
Thirdly, Dr O'Neill stated that he considered a neuro-psychological report ought to be obtained, and that his assessment may have to be reviewed having regard to any results from such a report. As already stated, that was a clear intimation that any such assessment might be of 10 per cent or less whole person impairment.
Fourthly, the report from Dr Casikar which stated that the appellant's prognosis was "good" and that he had "recovered from the recent injury", and provided a whole person impairment of less than 10 per cent, had been obtained by the respondent in December 2015.
Finally, the respondent was in possession of a report from Dr Langeluddecke dated 16 June 2016, in which she observed the appellant's "cognitive abilities to be generally well preserved at an Average level for age" and stated that he had made a good recovery of cognitive function in relation to the injuries sustained in the 2012 motor vehicle accident.
Whilst it is correct that Dr Langeluddecke did not provide her assessment of whole person impairment until 26 September 2016, there would have been little doubt, having regard to the contents of her report of 16 June 2016, that her assessment of whole person impairment would have been less than 10 per cent. The fact that his Honour considered that the application had primarily arisen out of the receipt of Dr Langeluddecke's report of 26 September 2016 failed to take into account the respondent's receipt of the earlier report dated 16 June 2016, as well as the report of Dr Casikar of December 2015.
His Honour was correct to refer to s 5(1)(b) of the Act, which provides that an object of the Act is "to encourage the early resolution of compensation claims". It is also relevant to take account of the Civil Procedure Act 2005 (NSW), s 56, which provides that the overriding purpose of that Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" and requires the Court and parties to conduct proceedings in a manner which gives effect to this.
The Court and parties are entitled to, and should expect that, subject to justifiable and justified circumstances, proceedings will commence on the allocated date for hearing and proceed to finality and that this process will be carried out with appropriate efficiency. The requirement that proceedings be determined with due despatch, having regard to their just disposition, is now part of the statutory basis upon which litigation is required to be conducted. As was stated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [98], by reference to the analogous provisions of r 21 of the Court Procedures Rules 2006 (ACT), whilst the paramount purpose of the rule is "a just resolution of proceedings", that is to be:
"… understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings."
Unless explained, the respondent's delay in seeking to have the appellant referred for reassessment can only be described as inordinate. There was, however, no explanation whatsoever for that delay, save for reliance on Dr Langeluddecke's assessment in the report of 26 September 2016. That assessment added little, if anything, to the information that had been in the respondent's possession since the receipt of Dr Casikar's December report and Dr Langeluddecke's June report. Having regard to the significant delay which would follow from the adjournment of the proceedings to enable a further medical assessment to be undertaken, it was our view that the discretion should have been exercised by refusing that application.
For these reasons, the Court made the following orders on 4 May 2017:
(1) Grant leave to appeal;
(2) Appeal allowed;
(3) Set aside orders 2 and 3 made on 11 October 2016;
(4) Direct the respondent forthwith to advise the Proper Officer of the Motor Accidents Authority in the Unit of the Medical Assessment Service that the referral under s 62(1)(b) for further medical assessment has been set aside;
(5) The Court notes that the insurer of the respondent will withdraw the application for further medical assessment in any event;
(6) Remit the matter to the District Court for the fixing of a hearing date for determination of the applicant's claim made in the statement of claim;
(7) The respondent to pay all costs in this Court, being both for the summons for leave to appeal and the appeal;
(8) The respondent to pay the costs of the application for referral, being the costs reserved by the primary judge.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 May 2017
Held:
(1) The primary judge made his order on the basis of an incorrect understanding of the time it would take for the further medical assessment to be undertaken. There was no evidence to support this time frame. [2]-[3]
(2) The respondent's delay in making the application for further medical assessment was inordinate. In circumstances where there was no explanation for this delay, the primary judge erred in allowing the application. [34]
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27; Motor Accidents Compensation Act 1999 (NSW) s 5(1)(b); Civil Procedure Act 2005 (NSW) s 56 referred to.